are clearly established by numerous decisions of this court. In Strong v. Cotton, 1 Wis. 471, a party interested in the property sold, and who intended to redeem it before sale, remained away from the sale, under a reasonable belief and supposition that the sale would be postponed, and the property was sold for an inadequate price. The sale is set aside, and this court, in the opinion of the late Mr. Justice Crawford, quotes approvingly the language in Maurice v. The Bishop of Durham, 11 Ves. 57, "where there is some fraud or misconduct in the purchaser, or fraudulent negligence in another person as agent, of which it is against conscience that the chaser should take advantage, the biddings will be opened after confirmation," and, as the result of a review of the New York authorities upon the question, the opinion says "that whenever it would be inequitable or against good conscience to permit the sale to stand, the court will not hesitate to exercise its discretion by ordering a resale, and further, "in no proper sense of the word, could a transaction of this kind be called a fair sale.

pur

In Adams v. Haskell, 10 Wis. 123, the parties interested, and who intended to bid, and would have bid, $500 for the property, were kept away by an accident, and the plaintiff in foreclosure bid it in for $150. The circuit court on motion set aside the sale, and this court affirmed the order as being "a very sound exercise of discretion under the circumstances.

In Cleveland v. Southard, Safford et al. 25 Wis. 479, the purchaser at foreclosure sale colluded with the mortgagee in order to buy the mortgaged premises for very much less than the mortgaged debt and their value, and this court, in the opinion of the late Mr. Justice Paine, said: "After collusively selling the land to Safford on the foreclosure, for a part only of the debt, when he knew, if fairly sold, it would have much more than paid the whole of it, ought not to be allowed to enforce the personal claim for the deficiency which he had himself thus caused against Southard;" and the motion to set aside the sale was denied, because of this clear and adequate remedy in defence to a suit for the deficiency. If a party for such an act is to be held responsible by collusion with the purchaser, much more where he is the party himself, and the rights of no third person intervene. See, also, Babcock v. Perry, 8 Wis. 277; Starkweather v. Hawes, 10 Wis. 125; Cambell v. Smith, 9 Wis. 305; Jones v. Dow, 15 Wis. 582; Baasen v. Eilers, 11 Wis. 277; Eneking v. Simmons, 28 Wis. 272; Warren v. Fareman, 14 Wis. 35.

The order of the circuit court confirming the sale is reversed, with costs, and the cause remanded, with directions to that court to set aside the sale of the premises to the respondent Andreas Hein, made on the fourth day of December, 1877.

EBENEZER STEVENS, Respondent, vs. GEORGE W. SHAFER and another, Impleaded, etc., Appellants.

Filed December 16, 1879.

A judgment against the principal in an official bond, appearing by the record to have been recovered for acts or omissions which would be a breach of the conditions of the bond, is admissible against the sureties, in an action upon the bond, as at least prima facie evidence of plaintiff's right to recover, and of the amount he is entitled to recover.-STATE REP.

Appeal from Winnebago circuit court.
Moses Hooper, for respondent.

Charles W. Felker, for appellants.

TAYLOR, J. The respondent, as sheriff of Winnebago county, appointed Stephen W. Race one of his deputies, and took from him a bond, with Shafer and W. W. Race, the appellants, as his sureties. The bond was joint and several, and was conditioned "that Stephen W. Race should well and faithfully, in all things, perform and execute the duties of the office of deputy sheriff of the county of Winnebago, during his continuance in office as deputy sheriff, without fault, deceit or oppression, and should pay over all money that might come into his hands as such deputy sheriff which may be so required by law."

An action had been brought against the sheriff to recover the amount of an execution issued upon a judgment rendered in a justice's court, which had been placed in the hands of his deputy, Race, and which he had failed to collect; and in that action a recovery was had against the sheriff, on the ground of negligence on the part of the deputy in not levying upon the property of the defendant in the execution, he having sufficient to satisfy the same, and that afterwards the execution debtor went into bankruptcy, and the plaintiff was unable to collect his debt. Of this action the deputy, Race, had notice, and appeared and defended the same at his own expense.

After judgment in that action the sheriff commenced the present action upon the bond of the deputy. Upon the trial the judgment upon which the execution was issued and

placed in the hands of Race was admitted. The plaintiff offered in evidence the execution issued upon such judgment, together with the return of deputy Race thereon, "that after using due diligence, and making diligent search, he was unable to find any personal property wherewith to satisfy the execution;" and then offered in evidence the judgment roll in the said action against the plaintiff. Defendants W. W. Race and Shafer objected to the judgment roll as evidence against them on several grounds, but the court below overruled the objections and permitted the record to be received in evidence.

Plaintiff gave evidence that he had paid the judgment recovered against him, and some other evidence, tending to show that the defendant in the execution had personal property in the county out of which the amount of the execution might have been realized, while the same was in the hands of the deputy, Race; but, as the court directed the jury to return a verdict for the plaintiff for the full amount of the judgment recovered against him in the former action, that evidence is not important in determining the questions relied upon by the appellants for a reversal of this judg

ment.

The complaint in the record of the action against the sheriff shows that plaintiff's cause of action in that case was founded upon the neglect of the deputy, Race, as above set forth.

The only exception to the evidence in the case which it is material to consider is that taken to the introduction of the judgment roll in the action against the sheriff. The learned counsel for the appellants insist that, as they were not parties.to that action, and had no notice thereof, it was not evidence against them in this action for any purpose. It is not denied but that it was properly received as evidence against Stephen W. Race, the deputy, as he had notice of the action, and defended the same, and was therefore bound thereby.

In the case presented by the record, the principal having had notice of the action against the sheriff for his default, and having appeared and defended that action, the judgment against the sheriff is just as conclusive against him as though the sheriff, after having been compelled to pay that judgment, had brought an action against his deputy for such neglect and misconduct, and had recovered judgment against him in that action.

The exceptions of the appellants present the question

whether the sureties in an official bond are bound in any way by a judgment against their principal, in an action not brought upon such bond, for a breach of duty which they have covenanted against in such bond. After examining a great number of decisions, in which the question has been discussed and decided, we think the great weight of authority, as well as the better reasons, are in favor of holding that the judgment against the principal is admissible as evidence against the sureties; and without deciding how far, and upon what points, the same is conclusive, we hold that the same is at least presumptive evidence of the right of the plaintiff to recover, and of the amount of such recovery, when the execution of the bond is proved or admitted, and the record of the former judgment shows that the recovery was for acts or omissions, the proof of which would be a breach of some one or more of the conditions of the bond.

It is urged by the counsel for the appellants that such judgment is "res inter alios acta," and therefore not admissible. We think otherwise. It will be remembered that in an action of this kind the plaintiff's right of action depends upon the fault or misconduct of their principal, and such fault or misconduct must be proved in the action in order to entitle the plaintiff to recover at all. It would seem, therefore, that a judgment against such principal, which is absolutely conclusive against him, that he was guilty of such fault, ought to be at least presumptive evidence against his sureties of that fact.

It is evident the sureties could, in an action against them, make use of a judgment in an action against their principal as a defence, when the judgment was in his favor.

Suppose in this case the sheriff had first brought his action against the principal, such principal not having had any notice of the proceedings against the sheriff, and in such action the jury had found a verdict in favor of the defendant, on the ground that he had not been guilty of any neglect in not collecting the amount of the execution; and after such verdict and judgment the sheriff had brought his action against the sureties in the bond of the principal, alleging the same neglect of the deputy as his cause of action: Is it not evident that the sureties could use the judgment in favor of their principal as a complete answer to the plaintiff's cause of action? The judgment in favor of the principal in the former action would be conclusive evidence against the sheriff that he had not been guilty of the neglect charged against

him. The sheriff could only recover in the action against the sureties by proof of the guilt of their principal, and, as between the sheriff and the principal, the question of his guilt would be res adjudicata in the first action. Such judgment would therefore be a complete bar to the action against the sureties.

Again, if the sheriff had sued the principal without joining the sureties, and he had recovered a sum of money less than he had been compelled to pay on account of the default of his deputy, and had then commenced a suit against his sureties, claiming a larger sum, it is also evident that the judgment against the principal would be conclusive in favor of the sureties, as to the highest amount of damages he could recover against them. The judgment against the principal would be conclusive against the sheriff as to the extent to which he had been damaged by his default, and the sureties, who are to answer only to the extent of the injury sustained by the sheriff on account of the default of their principal, could avail themselves of the verdict in the former action to limit the amount of damages, and the sheriff would be as completely bound by the same as though he had expressly agreed that his damages did not exceed the amount of the former verdict.

These illustrations show that the judgment in the action against the principal is not entirely "res inter alios acta” as to the sureties. Such judgment, if adverse to the plaintiff, is conclusive in favor of the sureties, and in any event is conclusive as to the extent of damages which he may recover against them. This view of the question is maintained in the following cases: Masser v. Strickland, 17 S. & R. 354, 358; Drummond v. Prestman, 12 Wheat. 515, 519, 520; Webb v. State, 4 Cald. (Tenn.) 200, 202.

There is another view of the question which is well stated by a very able and learned judge, Chief Justice Shaw, in the case of The City of Lowell v. Parker et al. 10 Met. 309, 315, which was also an action against the sureties on an official bond. In reply to the same objection which is made in this case, that the judgment against the principal was res inter alios, and therefore not admissible against the sureties, the learned Chief Justice said: "We think this objection cannot be supported under the circumstances of this case. When one is responsible, by force of law or by contract, for the faithful performance of the duty of another, a judgment against that other for the failure of the performance of such duty, if